by Phil Wilson
Trump’s Labor Agenda
The labor relations world could not look more different than it did just two weeks ago.
This is my first Insight article since Donald J. Trump shocked everyone (perhaps even himself) and became the 45th President of the United States. If you didn’t get a chance to listen to my post-election webinar last week I gave my first impressions about what to expect in more detail. But here are the highlights.
Union Households Delivered Trump the Presidency
Trump rewrote the election map on his run to the White House. Ironically he did this by tearing down a wall – the “blue wall” states of Michigan, Pennsylvania, Wisconsin, and Ohio. Check out this map:
After unions spent millions of dollars and hundreds of thousands of hours pushing union members to vote for Hillary, Trump won 43% of union households nationally according to CNN exit polling. Hillary Clinton won only 51% of them. That is a 13% swing from Obama’s victory over Mitt Romney in 2012. In Ohio Trump won an incredible 54% of union households.
The real story of this election was that Midwestern working class voters gave a big middle finger to the Democratic establishment generally – and their union leadership specifically. They decided that they’d rather roll the dice on a controversial agent of change than struggle through another 4 years of Democratic leadership.
Labor Policy to Expect from President Trump
It is early, but the financial markets certainly believe that working class voters knew what they were doing. Trump has just started naming Cabinet officials, and labor appointments are not at the top of the priority list (although he did interview potential Labor Secretaries this weekend). But clearly the core domestic focus of the first 100 days is jobs. And early indications are that a Trump cabinet will roll back government regulations with a vengeance.
What does this focus on jobs and reduced regulation mean for labor policy? Here are a few things to watch for:
- Executive Orders: A lot of the big changes during the Obama Administration began as Executive Orders. Many of these will be reversed the first week after Trump takes the oath of office. These include the blacklisting regulation, paid leave, successor employer rules and many others. While these orders mainly impact government contractors, they are “quick wins” you can expect to see right away.
This is a very common first move when the Presidency changes parties. This one will have two differences. First, since Obama was unable to do much of anything legislatively after the 2010 mid-term elections, most of his biggest accomplishments were done through Executive Order. This means a lot of his achievements will be reversed with a pen stroke. Second, President Trump is a marketer over anything else. I would expect to see a lot more fanfare about this somewhat routine move, especially as proof about how serious he is about rolling back regulations.
- Rule Making: This is another area where the Obama Administration moved the ball quite a bit. Agency rules are more difficult to change or reverse. There are two categories to watch here. Many of these rules, especially the recent ones, are subject to litigation. The persuader rule is basically dead. The Labor Department could choose to appeal before Trump takes office – if so, you would imagine the new Labor Secretary will withdraw that appeal as soon as they take office. The new Department of Labor may also want to lose on rules like the overtime rule or blacklisting regulation (although they will still hope to preserve executive authority to make rules, so they could end up appealing cases about rules that they don’t support long term).
Other rules have already survived litigation. Things like the ambush election rule can only be reversed by new rule making, which takes time and effort. Another option is to change the Congressional Review Act to allow Congress to review and vote down regulations they don’t agree with. Today that law only allows review for 60 days after a rule goes final, but some have argued that should be amended to allow review at any time. Trump has also vowed to make it more difficult for agencies to issue new regulations, and this would be one way to do that.
- National Labor Relations Board: The NLRB will remain Democrat controlled until two Republican members can be confirmed. This will take some time. Unfortunately, Board appointments aren’t likely to get “fast tracked” in the Senate. And Richard Griffin will remain General Counsel until November of next year. This means that rolling back NLRB decisions and rule making (like the ambush election rule) aren’t likely to start happening until the middle to end of next year. And there is no reason to believe that Griffin will put on the brakes as he aggressively tries to make having a pulse a protected concerted activity.
Traditionally the Board has refused to overturn precedent without at least 3 votes (a majority of the full-strength, 5-member panel). Since the Board today has only 3 members, including one Republican Phil Miscimarra, you would expect things to stay somewhat stable until the new members are confirmed. But this Board and General Counsel have not shied away from controversy. If you want new Republican members confirmed quickly it might be time to hope for the Democrats on the Board to abandon the old tradition.
- Legislative Action: Until two weeks ago this topic seemed as fantastical as the new Harry Potter movie. But in addition to Trump winning the Presidency the Republicans now control the House and the Senate. While you may have heard this is the first time that’s happened since President Hoover (not true – Eisenhower and George W. Bush also briefly accomplished it) it is pretty rare. And that means there is at least the possibility of legislative solutions to some of the regulatory overreach of the last 8 years. Legislation is never an easy matter (you need 60 votes in the Senate, which are exceedingly hard to get). But there is a better chance of legislative fixes now than at any time since 2003. I would caution folks to remember the lesson of the Employee Free Choice Act. This was the key agenda item of unions when Obama swept into power in 2008. They came incredibly close to achieving it. But they didn’t, and that’s the point. The business community should shoot for laser-targeted fixes versus swinging for the fences. Home runs are great show, but you win by hitting singles and advancing runners. That’s what Republicans must do over the next two years.
There are numerous legislative proposals already waiting in the wings for the new Congress (check out my slide deck from the webinar for a list of just a few). Hopefully they will act on a few of them soon.
That’s just a taste of what we have in store for the next few months. Speaking of tasting things, I hope you and your family have a blessed Thanksgiving.